IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Evan Bauer, :

Appellant :

 :

v. : No. 412 C.D. 2022

 : Submitted: August 26, 2022

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: September 20, 2023

Evan Bauer (Licensee) appeals from the March 16, 2022 Order of the Court 

of Common Pleas of Montgomery County (common pleas), which denied Licensee’s 

statutory appeal and reinstated the Commonwealth of Pennsylvania, Department of 

Transportation, Bureau of Driver Licensing’s (Bureau), one-year suspension of his 

operating privilege. Upon careful consideration, we affirm. 

I. BACKGROUND

On March 17, 2019, Licensee was placed under arrest for driving under the 

influence of alcohol or a controlled substance (DUI) in violation of Section 3802 of 

the Vehicle Code, 75 Pa.C.S. § 3802. Licensee refused to submit to chemical testing 

after being placed under arrest and read the DL-26B form. (Reproduced Record 
2

(R.R.) at 5.1) The Bureau notified Licensee via letter, with a mail date of April 5, 

2019, that his operating privilege was suspended for a period of one year, effective 

May 10, 2019, in accordance with Section 1547(b)(1)(i) of the Vehicle Code, 75 

Pa.C.S. § 1547(b)(1)(i), for refusing chemical testing.2 (R.R. at 1.)3 Licensee filed 

a statutory appeal of the suspension on May 3, 2019. (Id. at 70.) Following a number 

of continuances, common pleas held a de novo hearing on March 15, 2022. The 

Bureau presented the testimony of Officer Jacob Allen of the Upper Providence 

Township Police Department and submitted certified copies of Licensee’s records. 

(Exs. C-1, C-2.) Common pleas summarized Officer Allen’s testimony as follows:

On March 17, 2019 at 2:51 in the morning Officer [] Allen . . . was on 

patrol when he was advised by his Sergeant that he observed a vehicle 

traveling on Route 29 getting onto Route 422 East. ([Notes of 

Testimony (]NT[)], 3/15/2022, p. 6). [The] Sergeant [] observed the 

vehicle was missing its rear driver’s side tire[.] (NT, 3/15/2022, p. 6). 

The Sergeant initiated a traffic stop on [Licensee] and requested Officer 

[] Allen [at] the scene to take over the stop. (NT, 3/15/22 p. 6). Officer 

Allen arrived to the scene and observed [Licensee] had extremely 

bloodshot eyes, [and] slurred speech, and [Officer Allen] could smell a 

strong odor of an alcoholic beverage. (NT, 3/15/2022, p. 7). In addition 

[] Officer [Allen] observed [Licensee] was bleeding from the bridge of 

his nose. (NT, 3/15/2022, p. 7). During the course of the stop 

[Licensee] informed [] Officer [Allen] he was in a fight within the 

Phoenixville Borough. (NT, 3/15/2022, p. 7). [Licensee] was unaware 

he had any injuries to his face, and he did not complain of any pain 

1 The pagination of Licensee’s Reproduced Record does not comport with Pennsylvania 

Rule of Appellate Procedure 2173, Pa.R.A.P. 2173 (requiring that the pagination of reproduced

records be in the form of an Arabic number followed by a small “a”). We will utilize the page 

number provided but omit the leading “R.”

2 Section 1547(b)(1)(i) of the Vehicle Code states, in relevant part, “[i]f any person placed 

under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses 

to do so . . . the [Bureau] shall suspend the operating privilege of the person . . . for a period of 12 

months.” 75 Pa.C.S. § 1547(b)(1)(i). 

3

In addition to the Notice of Suspension, Licensee received a Notice of Disqualification 

related to his commercial driving privileges, which was also for a period of one year. (R.R. at 6.)
3

during the investigation. (NT, 3/15/2022, p. 7). [] Officer [Allen] then 

ran multiple sobriety tests on [Licensee], and observed a couple signs 

of impairment, when [] Officer [Allen] asked [Licensee] to take his 

right hand and touch his nose[,] he placed the right index finger 

underneath his nose before readjusting and placing it on his nose. (NT, 

3/15/2022, p. 9). Following the sobriety tests and a breath test 

[Licensee] was placed under arrest for suspicion of a DUI and was 

transported to Phoenixville Hospital. (NT, 3/15/2022, p. 12). 

At 3:45 in the morning [] Officer [Allen] read [Licensee] the PA DL26B blood test warnings under . . . Section 1547. [] Officer [Allen] 

informed [Licensee] of the warnings and he promptly said, “no, 

absolutely not.” (NT, 3/15/2022, p.12). [] Officer [Allen] then asked 

[Licensee] if he was sure he wanted to refuse the chemical testing and 

he replied he did not want to take the test, and finally [] Officer [Allen] 

gave him one final chance and [Licensee] said no. (NT, 3/15/2022, p. 

12). 

[] Officer [Allen] said [Licensee] never complained of any pain, and 

never indicated he could not understand what was being said when read 

the DL-26. (NT, 3/15/2022, p. 12). . . . 

(Common Pleas Opinion (Op.) at 1-2.)

Licensee presented the expert testimony of Dr. Neil S. Kaye, a board-certified 

psychiatrist, who testified via Zoom, as follows. Dr. Kaye interviewed Licensee by 

telephone and reviewed Licensee’s medical records from Patient First. (R.R. at 42.) 

Based upon this, Dr. Kaye opined in both his report and in his testimony that it was 

“possible” that Licensee’s behavior when he was arrested was caused by a 

concussion. (Id. at 45-46, 52-53, 55-56; Ex. D-2.) When asked on crossexamination if he could state to a reasonable degree of medical certainty that 

Licensee had a concussion, Dr. Kaye responded “no” and that the documents he 

“reviewed suggested that [Licensee] sustained a concussion.” (R.R. at 50

(emphasis added).) Dr. Kaye further testified that a prescription Patient First issued 
4

referenced a “concussion” but “[t]hat’s all there is. There’s no description of any of 

his symptoms. I don’t know how [Patient First] reached that diagnosis, and so I can 

only tell the Court what is in the records.” (Id. at 51.) On redirect when being 

questioned about his report, Dr. Kaye stated to Licensee’s then-counsel:

[Y]ou and I have gone around on this for hours prior to this report being 

issued.

. . . .

And I said that I am a hundred percent certain that it is possible. I

understand you want me to say to a reasonable degree of medical 

certainty that this is what happened, and I told you I am not able to say 

that.

What I am able to say is that I am sure that it’s possible. That’s not the 

same as saying this is definitely what I believe happened.

. . . .

I opine that his behavior may, may, if possible, have been influenced 

by a concussion.

(Id. at 56.)

Jay Bauer, Licensee’s father (Father),

4

testified as to Licensee’s physical and 

mental condition when police dropped Licensee off following his release, Licensee’s 

history of concussions, the damage sustained to the vehicle Licensee was driving

from a collision, and the subsequent treatment Licensee received at Patient First. 

(Id. at 58-62.) Licensee also testified on his own behalf and stated he did not 

remember much about that night. (Id. at 64.)

On March 16, 2022, common pleas entered the Order denying Licensee’s 

statutory appeal and reinstating the suspension.5 

4 Father, a licensed attorney, now represents Licensee in his appeal to this Court. 

5 Common pleas had previously granted supersedeas.
5

Licensee subsequently filed a motion for reconsideration, which was denied. 

(Id. at 68; 4/7/22 Order, Record Item 25.) On April 7, 2022, Licensee filed a timely 

notice of appeal. On May 6, 2022, common pleas issued an opinion in support of its 

Order. Therein, common pleas reasoned that the Bureau had satisfied its burden of 

showing Licensee was offered a meaningful opportunity to submit to chemical 

testing after being placed under arrest for suspicion of DUI. (Op. at 3.) Common 

pleas further reasoned that the expert testimony provided did not establish that 

Licensee had a concussion, only that it was a “possibility,” and common pleas found 

this testimony was “not conclusive or persuasive.” (Id. at 4.) As a result, common 

pleas held that Licensee did not satisfy his burden of proving his refusal was not 

“knowing and conscious.”6(Id.)

II. PARTIES’ ARGUMENTS 

Licensee argues he did not make a knowing refusal to submit to chemical 

testing because of the concussion he sustained. He further argues common pleas did 

not consider all evidence in its decision to credit the statement of Officer Allen and 

not that of Dr. Kaye. Finally, Licensee asserts he should not have been subject to a 

civil suspension of his operating privilege because the Commonwealth dismissed his 

DUI charges. Accordingly, he asks the Court to reverse common pleas’ order.7

In response, the Bureau argues that, pursuant to Pennsylvania Rule of 

Appellate Procedure 2119(a), Pa.R.A.P. 2119(a), Licensee waived his argument that 

6 The conclusion section of common pleas’ May 6, 2022 Opinion states: “This Court 

properly granted [Licensee]’s appeal to rescind the suspension.” (Op. at 4 (emphasis added).) 

However, based upon the analysis contained in the Opinion and the March 16, 2022 Order, this 

statement appears to be an error. 

7

In the Conclusion section of Licensee’s Brief, Licensee also requests the Court to direct 

common pleas “to enter a judgment that the license suspension of [Licensee] be reinstated.” 

(Licensee’s Br. at 12 (emphasis added).) Presumably, this latter part is error.
6

common pleas did not consider all the evidence because Licensee did not develop 

this argument in his brief. Notwithstanding, the Bureau argues it is without merit 

because Dr. Kaye did not testify within a reasonable degree of medical certainty that 

Licensee did, in fact, suffer a concussion that would have impacted his ability to 

make a knowing and conscious decision. 

Additionally, the Bureau argues that “[t]here is no merit to [Licensee]’s 

argument that in order for the Bureau to impose a suspension of his operating 

privilege in accordance with 75 Pa.C.S. § 1547, ‘there must be a DUI charge.’” 

(Bureau’s Br. at 14.) The Bureau cites Glass v. Department of Transportation, 

Bureau of Traffic Safety, 333 A.2d 768, 770 (Pa. 1975), and asserts “in order for a 

police officer to request chemical testing, it is not necessary that the officer make a 

formal arrest. All that is required is that [the] licensee be subject to the custody and 

control of the police officer.” (Bureau’s Br. at 14.) Furthermore, the Bureau asserts 

“[d]ismissal of the underlying criminal charges does not affect the arresting officer’s 

‘reasonable grounds’ to believe that [the] licensee was operating a vehicle while 

under the influence” and “it is not necessary that [the] licensee be tried or convicted 

of DUI.” (Id. at 16 (citations omitted).)

III. DISCUSSION

To sustain the Bureau’s suspension of a licensee’s operating privilege in 

situations such as this, the Bureau 

must establish that the licensee: (1) was arrested for driving under the 

influence by a police officer who had reasonable grounds to believe that 

the licensee was operating or was in actual physical control of the 

movement of the vehicle while under the influence of alcohol; (2) was 

asked to submit to a chemical test; (3) refused to do so; and (4) was 

warned that refusal might result in a license suspension. Once [the 
7

Bureau] meets this burden, the licensee must then establish that the 

refusal was not knowing or conscious or that the licensee was 

physically unable to take the test. 

Kollar v. Dep’t of Transp., Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. 

Cmwlth. 2010) (internal citations omitted). However, if a licensee’s ability to make 

a knowing and conscious refusal was caused, even partially, by intoxication, “the 

licensee is precluded from meeting [their] burden as a matter of law.” Id. at 340. 

On the first issue, Licensee argues he did not make a knowing refusal to 

submit to chemical testing because of the concussion he sustained. This Court in 

Kollar stated that “[t]he medical expert must rule out alcohol as a contributing factor 

to the licensee’s inability to offer a knowing and conscious refusal in order to satisfy 

the licensee’s burden.” Id. In Kollar, we reversed the trial court’s order sustaining 

a licensee’s appeal of her operating privileges. Id. at 338. The Court rejected the 

licensee’s argument that she was unable to make a knowing and conscious refusal 

of chemical testing due to her injuries when the Court found the testimony of 

licensee’s medical expert to be equivocal when the expert was not certain that the 

“[l]icensee’s injuries would have rendered [the l]icensee incapable of offering a 

knowing and conscious refusal regardless of any alcohol consumption.” Id. at 342. 

In the present case, Licensee’s medical expert has presented similar 

testimony. Dr. Kaye repeatedly testified that it was “possible” that Licensee’s 

behavior was the result of a “possible” concussion. (R.R. at 45-46, 52-53, 55-56; 

Ex. D-2.) This is the epitome of equivocal medical opinion. Kollar, 7 A.3d at 340 

(“A medical opinion is equivocal if it is merely based on possibilities.”). Because 

the expert testimony could not establish that Licensee’s refusal was the product of a 

medical condition and not influenced by alcohol consumption, common pleas 
8

correctly concluded that Licensee could not meet his burden that the refusal was not 

knowing and conscious. 

On the second issue, Licensee argues common pleas did not consider all 

evidence in its decision to credit the statement of Officer Allen and not that of 

Licensee’s medical expert. The Bureau responds by arguing that Licensee’s 

argument is waived per Rule 2119(a) of the Pennsylvania Rules of Appellate 

Procedure because he did not develop the argument in his brief. (Bureau’s Br. at 10-

11.) We find that while not extensively discussed, the issue was adequately raised 

by Licensee. Although the issue has not been waived, “it is not the province of this 

Court to make new or different findings of fact. . . . As long as sufficient evidence 

exists that is adequate to support the facts found by the trial court . . . we are 

precluded from overturning those findings.” Reinhart v. Dep’t of Transp., Bureau 

of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008) (internal citations 

omitted). As stated above, Dr. Kaye’s testimony was incompetent because it was 

equivocal. Kollar, 7 A.3d 336 at 340. To the extent Licensee challenges other 

findings of common pleas, upon review of the record, we find they are supported by 

substantial evidence. Furthermore, to the extent Licensee argues common pleas 

should have credited Dr. Kaye over Officer Allen, it is not the “province of this 

Court” to overturn the credibility determinations of common pleas. Reinhart, 954 

A.2d at 765.

On the third issue, Licensee argues that he should not have been subject to a 

civil suspension of his operating privilege when the Commonwealth dismissed his 

DUI charges. “The law is clear that, regardless of the disposition of the criminal 

charge, the refusal to take the breath test is a separate consideration, the suspension 

for which is an independent civil proceeding.” Wisniewski v. Commonwealth of 
9

Pennsylvania, 457 A.2d 1334, 1337 (Pa. Cmwlth. 1983). See also Ponce v. Dep’t 

of Transp., Bureau of Driver Licensing, 685 A.2d 607, 609-610 (Pa. Cmwlth. 1996) 

(affirming the trial court’s dismissal of the licensee’s appeal and holding that the 

Bureau’s suspension of licensee’s operating privilege following his acquittal of the 

offense of DUI was proper and did not violate the Double Jeopardy Clause of the 

United States Constitution, U.S. Const. amend. V.) Licensee’s civil suspension for 

refusing chemical testing and his criminal charge for DUI are separate and 

independent of each other even when they arise out of the same incident. As a result, 

common pleas did not err in affirming the suspension of Licensee’s operating 

privileges. 

IV. CONCLUSION

Based on the aforementioned precedent, we discern no error in common pleas’ 

finding that Licensee’s refusal of chemical testing was knowing and conscious. 

Furthermore, we hold that based on this precedent, the imposition of Licensee’s 

suspension was proper even after the criminal charges against Licensee were 

dismissed. In light of the foregoing, we affirm the Order of common pleas.

__________________________________________

RENÉE COHN JUBELIRER, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Evan Bauer, :

Appellant :

 :

v. : No. 412 C.D. 2022

 : 

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

O R D E R

NOW, September 20, 2023, the Order of the Court of Common Pleas of 

Montgomery County, entered in the above-captioned matter, is AFFIRMED. 

__________________________________________

RENÉE COHN JUBELIRER, President Judge